COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Overton
Argued at Salem, Virginia
JAMES DAVID SPARKS, a/k/a
JAMES D. SPARKS
OPINION BY
v. Record No. 0452-96-3 JUDGE SAM W. COLEMAN III
MARCH 4, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Willis A. Woods, Judge Designate
Joseph F. Dene (Dene & Dene, on brief), for
appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
The issue presented in this appeal from two convictions of
obtaining money by false pretenses is whether the trial court
erred by admitting into evidence certain bank records under the
business records exception to the hearsay rule. Specifically,
the question is whether the bank's vice-president, who had
general supervisory authority over bank personnel but no direct
supervision over the persons responsible for preparing or
maintaining the bank's records, was a person who could
authenticate the bank's records. We hold that the trial judge
did not err by admitting the bank records into evidence.
Accordingly, we affirm the appellant's convictions.
James Sparks, the appellant, was convicted on two counts of
obtaining money by false pretenses in violation of Code
§ 18.2-178. The evidence proved that on two separate occasions
the appellant presented checks at a local grocery store that
purported to be payroll checks drawn on S & S Salvage Company's
account. Both checks were made payable to the appellant and
purported to have been signed by an Edward Sparks. The store
cashed both checks. The checks were subsequently returned by
First Union Bank because the account upon which they were drawn
had been closed.
At trial, Karen Emanuelson, the vice-president of corporate
security for First Union Bank, offered as evidence copies of
several bank documents, including a deposit slip for the S & S
Salvage account, a signature card for the account, a First Union
form giving authority to open a business account to an
unincorporated individual, and a W-9 federal tax form. The
appellant objected to the admission of the documents on the
ground that they had not been properly authenticated. He argued
that Ms. Emanuelson was neither the custodian of the documents
nor the supervisor of the custodian of the documents as required
by the modern "shopbook" rule and Code § 8.01-391. After a voir
dire of Ms. Emanuelson to determine her knowledge of and access
to the records, the trial judge ruled that the documents were
admissible.
Virginia follows the modern "shopbook" rule or business
records exception to the hearsay rule, which allows introduction
"into evidence of verified regular [business] entries without
requiring proof from the original observers or record keepers."
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Neeley v. Johnson, 215 Va. 565, 571, 211 S.E.2d 100, 106 (1975).
If the records are kept in the normal course of business and are
relied upon in the transaction of the business by the entity for
which they are kept, then they have a certain guarantee of
trustworthiness and reliability. "Automatic" Sprinkler Corp. v.
Coley & Peterson, Inc., 219 Va. 781, 792, 250 S.E.2d 765, 773
(1979); Hooker v. Commonwealth, 14 Va. App. 454, 456, 418 S.E.2d
343, 344 (1992). "Admission of such evidence is conditioned,
therefore, on proof that the document comes from the proper
custodian and that it is a record kept in the ordinary course of
business made contemporaneously with the event by persons having
the duty to keep a true record." "Automatic" Sprinkler, 219 Va.
at 793, 250 S.E.2d at 773; see also Kettler & Scott, Inc. v.
Earth Tech. Cos., 248 Va. 450, 457, 449 S.E.2d 782, 786 (1994).
In order to admit a business record into evidence, it must be
"verified by testimony of the [entrant of the record] or of a
superior who testifies to the regular course of business." Ford
Motor Co. v. Phelps, 239 Va. 272, 276, 389 S.E.2d 454, 457
(1990); see also Charles E. Friend, The Law of Evidence in
Virginia § 18-13 (4th ed. 1993). Similarly, a copy of a business
record is admissible "provided that such copy is satisfactorily
identified and authenticated as a true copy by a custodian of
such record or by the person to whom said custodian reports, if
they be different, and is accompanied by a certificate that said
person does in fact have custody." Code § 8.01-391.
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The facts in this case, as they relate to the qualifications
of the witness to authenticate the bank's records, are strikingly
similar to the facts in French v. Virginian Ry. Co., 121 Va. 383,
93 S.E. 585 (1917). We find that the holding in French controls
our holding here. In French, the defendant attempted to
introduce a railroad company's records showing the times of its
trains' arrivals and departures. Instead of calling as a witness
the railroad's dispatcher in whose office the records were made
and kept, the defendant called a claims adjuster, who worked for
the railroad company in its division office. Id. at 385, 93 S.E.
at 585. The Virginia Supreme Court held that, even though the
records preferably should have been authenticated by the
dispatcher, "failure to do so affects, not their admissibility,
but their credibility, and the vital question is, not by whom
they were proved, but whether or not they were the original
[documents]." Id. at 387, 93 S.E. at 586. The Court held that
the railroad's records were admissible because the claims
adjuster testified that he had access to all of the railroad's
records, that the arrival and departure records were the original
records entered in the regular course of the railroad's business,
and that he obtained them from the place where they were properly
kept in custody. Id.
At trial in the instant case, Ms. Emanuelson testified that
the bank's records at issue here were kept in the regular course
of the bank's business. She testified that her job as
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vice-president of corporate security involved gathering
documentation from the bank's records whenever the bank suffered
a non-credit loss. She testified that the bank's records are
stored at the Roanoke service center and that no one individual
is the custodian in charge of the records. As a vice-president,
she has access to all records stored at the service center. She
can personally retrieve documents or have someone at the service
center pull the records and send them to her. She is not,
however, the immediate supervisor of the employees at the service
center.
After Ms. Emanuelson demonstrated her knowledge of how the
bank maintains its records and testified that she has access to
those records, she further testified that the challenged
documents were prepared at the Grundy branch bank by a bank
employee and were then sent by courier to the Roanoke service
center. She testified that deposit slips are microfilmed as soon
as they reach the service center; the originals are destroyed,
and the film is kept for seven years. Ms. Emanuelson testified
that she went to the service center and personally made copies of
the originals of the documents that were offered into evidence.
Ms. Emanuelson's demonstrated knowledge of how the bank's
records were maintained in the regular course of its business and
her testimony that she had access to the records established the
trustworthiness and reliability of the bank's records, which are
the cornerstones of the business records exception to the hearsay
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rule and Code § 8.01-391(D). Therefore, we uphold the ruling of
the trial court and affirm the convictions.
Affirmed.
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